NGUYEN HOANG VIET AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 339/2023, [2024] HKCA 692

On Appeal from [2023] HKCFI 2506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 339 OF 2023

(ON APPEAL FROM HCAL NO 847 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 26 October 2023, the Applicants, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 12 October 2023 (“the Order”) refusing to grant them leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 March 2019. The Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 1 March 2017.

BACKGROUND

2.  The Applicants are nationals of Vietnam. The 1^st Applicant and the 2^nd Applicants are husband and wife, and the 3^rd Applicant is their daughter (a minor). On 22 June 2014, the 1^st Applicant entered Hong Kong illegally. On 24 June 2014, he was arrested by the police. On 28 June 2014 and 4 July 2014, he lodged a non-refoulement claim. On 11 November 2014, the 2^nd Applicant surrendered herself to the Immigration Department and lodged a non-refoulement claim. On 16 January 2015, the 3^rd Applicant was born in Hong Kong. On 8 April 2015, the 2^nd Applicant lodged a non-refoulement claim on the behalf of the 3^rd Applicant. The Applicants’ claims were made on the same basis that, if refouled to Vietnam, they would be harmed or killed by a creditor due to an outstanding debt. Details of the Applicants’ claims have been summarised by the Judge at §§1-7 of the CALL-1 Form.

3.  By a Notice of Decision dated 1 March 2017, the Director dismissed the Applicants’ non-refoulement claims on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicants appealed the Director’s decision to the Board. On 22 March 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.  The Judge summarised the Board’s Decision at §11 of the CALL-1 Form as follows:

“Having considered the evidence, the Board found that it was a private dispute which was not inflicted by the state agent or approved by official or state acquiescence [7]-[8]; that there was no pain or sufferings that attained the requisite level of severity [9]-[12]; [22]; that state protection and internal relocation, according to the country of origin information, were both available to the applicants [13]-[18]; [28]. Independently assessing the applicants’ claims, the Board found that the applicants’ evidence was unreliable and thus their claims not credible [30]-[33].”

THE JUDGE’S DECISION

6.  On 27 March 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  On 12 October 2023, the Judge refused to grant them leave to apply for judicial review, for the following reasons:

“17. It is clear that the applicants were unrepresented before the Board and the Director and the Board had considered the applicants’ claim as a composite claim, contrary to the requirement of separate consideration of the child’s claim as set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

18. The question is whether, because the 3^rd applicant being not legally represented and her claim was not separately considered by the Board, leave should be given to the applicants to apply for judicial review of the Board’s Decision.

19. There are two sets of decisions by the Court of Appeal.

20. The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director [2022] HKCA 1121, Hon G Lam and Chow JJA, 3 August 2022, for the same reasons that the minor was unrepresented before the Board and the Board considered their claims as a composite claim, held:

‘22. In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, found the 1^st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1^st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2^nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24. In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.’

21. On the other hand, in another Court of Appeal case Siti Naisah Tasya Stephanie, a minor, by her next friend and mother, Siti Naisah v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director [2023] HKCA 336, Hon Chu VP and Barma JA, 15 March 2023, the Court of Appeal, on the same situation that the child was not legally represented and the Board had considered the claims as a composite claim, has made a different decision under the following circumstances:

‘13. The Board found the claim of the applicant’s mother incredible and unreliable, the level of risk was low as she could divorce S and internal relocation and state protection were reasonably available, and her problem with S was a private dispute with no state or official involvement. It accordingly dismissed their appeals on all applicable grounds.

21. Firstly, … Neither the Director nor the Board had given separate and independent assessment of the applicant’s claim. Both the Director’s decision and the Board’s decision had only focused on the case of the applicant’s mother’s and had not separately considered the applicant’s personal circumstances or minor-specific risks that may be relevant to her.

24. Secondly, we are of the view that in the circumstances of this case and in light of the discussions above, consideration should be given to providing the applicant with legal representation in her appeal before the Board, instead of being represented by her mother. In this regard, it is relevant to note that the applicant’s personal particulars and circumstances had not been accurately stated in the NCF, which was filled in by her mother. For instance, it stated that the applicant is of Indonesian citizenship and nationality and her country of habitual residence is Indonesia, when on the established facts she was born in Hong Kong, had never been to Indonesia and her nationality has not been established. The NCF further stated that the applicant is Javanese and her religion is Islam when on her mother’s evidence, which the Board did not reject, her father is an Indian. (emphasis added)

26. Thirdly, there is force in Mr Wong’s submission that, notwithstanding the contents of the applicant’s claim and NCF, which were put forward by her mother, the Board’s jurisdiction under the statutory scheme is not restricted to the parameters of what was presented in the NCF. Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that Article 3 of the Hong Kong Bill of Right Ordinance, Cap. 343 and other relevant non-derogable rights are given meaningful protection. The Board is required to exercise its powers to fulfil this positive duty: Chan Ki Kau v Commissioner of Police [2030] [sic] 5 HKLRD 653, at [73] to [75]. The Board is also required to ensure that high standards of procedural fairness are met before making its decision and should act to remedy any fundamental failings of the Director: Re Moshin Ali [2018] HKCA 549 at [35] to [45]. In the present case, it would appear that the Board had not conducted its independent enquiry into whether the applicant’s case required separate consideration and assessment. It had not addressed and remedied the Director’s error in treating and assessing the applicant’s claim and her mother’s claim as one composite claim, and had further fallen into the same error in taking the view that as the appeal of the applicant’s mother failed, the applicant’s appeal also failed.’

22. In the 1^st Court of Appeal case, the Court of Appeal considered that it did not ‘see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.’ On that basis, the Court of Appeal dismissed the applicants’ appeal.

23. In the 2^nd Court of Appeal case, the Court of Appeal had taken into consideration that the nationality of the minor was in question as she was born in Hong Kong and her religion was also in question because her father is an Indian. These are the materials obvious to the Board. It is because of those features of the case that trigger the obligation of the Board to make investigation into the matters concerning the child as the applicants were not legally represented before the Board. Absent such obvious evidence or materials, the Board would not be able to start the investigation by making wild guesses. The main theme of the Court of Appeal judgment is that legal representation should be granted to the minor before the Board in order to protect the minor’s interest.

24. In this case, those special features as in the 2^nd Court of Appeal case are absent. The Board had found as the fact of the case that the parents were unable to establish any real risk of being harmed or killed by their creditor if they return to Vietnam. They may have state protection and relocation alternative option if they return to Vietnam. There is no material that may give rise to a concern that there may be non-refoulement grounds that related specifically to the 3^rd applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before Board.

25. For the same reasons as in the 1^st Court of Appeal case, I therefore find that the applicants fail to establish that they have any realistic prospect of success in their intended applicant for judicial review of the Board’s Decision.”

THIS APPEAL

8.  In their Notice of Appeal dated 26 October 2023, the Applicants put forward the following ground(s) of appeal, namely, that their lives would be seriously threatened in Vietnam because creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity; relocation is completely unfeasible for a number of reasons; and the Immigration Department failed to consider their human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

9.  Also on 26 October 2023, the Applicants consented to their appeal being disposed of on paper by the Court without an oral hearing.

10.  The Applicants have failed to lodge any written submissions in support of their appeal contrary to the directions of the Registrar of Civil Appeals dated 13 March 2024.

DISCUSSION

11.  In relation to the 1^st and 2^nd Applicants, the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The 1^st and 2^nd Applicants have failed to identify or show any error in the Judge’s decision of 12 October 2023, or raise any viable ground of appeal against the Order.

14.  The 1^st and 2^nd Applicants’ appeal has no merits, and is dismissed.

15.  As for the 3^rd Applicant’s appeal, the Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] ‑ [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

16.  In the present case, the 3^rd Applicant’s claim was premised fundamentally on the claim of her parents, the 1^st and 2^nd Applicants. The Board, after considering the evidence of the 1^st and 2^nd Applicants, found that their evidence was not reliable or credible. The Board also found that, in any event, the dispute between the 1^st and 2^nd Applicants and their creditor was a private dispute without state involvement, and state protection and internal relocation were available to the Applicants (see the Board’s Decision at §§7-33).

17.  We do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the 3^rd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on her behalf before the Board. The decision of the Court of Appeal in Siti Naisah Tasya Stephanie, a minor, by her next friend and mother, Siti Naisah v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCA 336 was, in our view, correctly distinguished by the Judge on the facts of the present case.

18.  There is no viable ground of appeal against the Order raised by or on behalf of the 3^rd Applicant.

19.  The 3^rd Applicant’s intended judicial review is not reasonably arguable. So is her appeal against the Judge’s decision. Accordingly, we dismiss the 3^rd Applicant’s appeal.

20.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 3^rd Applicant’s appeal a nullity.